People v. Brown

• Decision Date: 29 July 1971
• Docket Number: Cr. 955
• Citation: 96 Cal.Rptr. 476,18 Cal.App.3d 1052
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry A. BROWN, Defendant and Appellant.

Page 476

96 Cal.Rptr. 476

18 Cal.App.3d 1052

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry A. BROWN, Defendant and Appellant.

Cr. 955.

Court of Appeal, Fifth District, California.

July 29, 1971.

[18 Cal.App.3d 1053] Paul Burke and Arthur D. Dempsey, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Charles P. Just and Gary Allon Larson, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

STONE, Presiding Justice.

Defendant, pursuant to a certificate of probable cause under Penal Code, section 1237.5, appeals from a judgment entered upon his plea of guilty to the charge of escaping from Tehachapi branch facility for narcotics' detention, treatment and rehabilitation (violation of Welf. & Inst.Code, § 3002). Defendant was a patient undergoing narcotics addiction treatment at the Tehachapi facility when he was granted a temporary release preparatory to a scheduled release. His leave commenced January 15, 1970, and he was to return to the facility January 18, which he failed to do. He was charged with escape; he pleaded not guilty and a preliminary examination was had. The district attorney, as frequently happens, put on a 'bare bones' case, and the defendant put on no evidence at all. He was held to answer and bound over to the superior court.

Thereafter, defendant, in propria persona, filed a written motion to dismiss, which was in substance an allegation that the public defender failed to cooperate with him, that differences had arisen between them and that he could not properly present a case unless other counsel were appointed. He concluded by requesting appointment of other counsel.

At this point, the record becomes vague and confusing. No notice of motion to dismiss pursuant to Penal Code, section 995 appears in the record, not even a minute order setting such a motion for hearing. Yet, such a motion was argued and defendant's request for change of counsel was summarily denied. At the hearing, the public defender argued facts, as well as law, many of which facts are not to be found in the transcript of the preliminary hearing. At no point in the proceedings was suppression of evidence mentioned so that Penal Code, section 1538.5, subdivision (m), is not involved.

About a week after the motion to dismiss was denied, defense counsel advised the court that defendant wished to withdraw his plea of not guilty and to enter a plea of guilty on the condition the court issue a certificate of probable cause 'so that Mr. Brown may appeal the denial of the motion under section 995 of the Penal Code.' The court then arraigned defendant for change of plea, and advised him of his right to a jury trial, the right to confront and cross-examine witnesses who might testify against him, the right against self-incrimination, and the right to remain silent. (People v. West, 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409, and cases cited therein.) However, the court did not explain to defendant the effect of a plea of guilty upon his right to appeal in such a circumstance.

At first blush, it seems doubtful that a defendant's appeal right should be the consideration for a bargained plea of guilty, since, historically, plea bargaining evolved as a procedure by which a defendant enters a plea to a lesser offense or receives lessened punishment, admitting all the elements of the crime to which he pleads guilty. (People v. Ward, 66 Cal.2d 571, 574, 58 Cal.Rptr. 313, 426 P.2d 881.) Where a defendant by a 995 motion asserts lack of probable cause and challenges the sufficiency of the evidence, as well as the law, applicable to the charge against him, it is illogical to enter a plea of guilty before those doubts are resolved by a 999a review. Certainly, he cannot admit the sufficiency of the evidence by...